Ontario Legislation Puts Class Actions at Risk

Earlier this month, Ontario lawmakers passed the Smarter and Stronger Justice Act, a far-reaching omnibus bill that seeks to modernize the province’s justice system by updating a variety of rules and regulations. The proposal that introduced the act, Bill 161, has attracted criticism from legal experts since its first reading last December. Changes to class action lawsuit certification standards are of particular concern to personal injury and class action lawyers.

What Has Changed for Class Action Lawyers?

A class action lawsuit must be ‘certified’ by a judge before it is recognized in the Ontario justice system. In other words, a judge must review the claim to ensure it meets a minimum standard.

Under the Smarter and Stronger Justice Act, that standard has changed. Groups of class action plaintiffs must now prove a) that a class action is the best possible means of accessing justice, and b) that the greatest harms suffered by each individual plaintiff also affected the other members of the group. The new standard closely resembles American law.

How Will the New Standard Affect Class Action Plaintiffs?

Class action lawyers have warned for months that the new standard will impede access to justice for vulnerable Ontarians.

“Because the test is more challenging now, many cases will get dropped,” one Ontario lawyer told the Canadian Press. “Businesses could likely defeat them. Now if a company acts badly, that behaviour will go unchecked – and consumers won’t have remedy for the harms they suffered.”

“Our courts simply aren’t equipped,” the lawyer continued. “What they have done is slam the door, in particular, on personal injury types of cases, and haven’t opened any other doors.”

The changes couldn’t have come at a worse time. Law firms across Ontario, including Will Davidson LLP, are in the process of initiating class action lawsuits against long-term care facilities that delivered negligent care at the height of the COVID-19 pandemic. In June, before Bill 161 was given Royal Assent, one lawyer voiced concerns on this issue at Queen’s Park.

“If Bill 161 is law, our most vulnerable citizens, seniors in long-term care homes overrun with COVID, will not be able to sue class actions to get justice,” the lawyer said. “If we can’t have class actions in these sorts of mass tragedies, only some of those people will be able to afford to do it individually.”

“To be clear, this is not just about long-term care homes,” they continued. “This same predomination and superiority provisions will make cases about institutional abuse, like this country’s shameful history of residential schools or systemic racism and gender discrimination, harder to bring.”

What Has the Government Said?

The Provincial Government has done little to address the concerns of class action lawyers, instead focusing on the Act’s overarching aim of modernizing the justice system. In an email statement to HuffPost, the Attorney General’s spokesperson, Jenessa Crognali, said:

“These improvements will address issues that clog the system and slow down justice for everyone … The proposed changes would not preclude individuals from seeking redress from other remedial avenues, but rather, these changes would ensure that a class action is the most appropriate procedure to obtain that redress.”

How Will Will Davidson LLP’s Class Actions be Affected?

Currently, Will Davidson LLP has launched two class action lawsuits against long-term care providers in Ontario, and is investigating action against several more. Speaking to HuffPost, Managing Partner Gary Will shared his thoughts on the necessity of these proceedings, with specific reference to our case against Orchard Villa.

“As a society, we just can’t tolerate that,” he said. “These individuals are very vulnerable. Many of them have severe physical difficulties; they are totally reliant on the care that’s provided to them in the home; many of them have issues of dementia and they can’t advocate for themselves. They are totally reliant on the owners of these facilities to provide proper care. And that was breached in a fundamental way and can’t be allowed to continue.”

In addition to our case against Orchard Villa, Will Davidson LLP has launched proceedings against Oxford Living, the owner and operator of Lundy Manor, and is investigating claims of negligent treatment at Holland Christian Homes, Ina Grafton Gage Home, the Village of Erin Meadows, Rosslyn Retirement Residence, and Chartwell Homes. If you are a resident of one of these facilities, a family member of a resident, or have information that may be pertinent to a case, contact us today.

Contact Will Davidson LLP

Will Davidson LLP has represented plaintiffs in class action lawsuits for decades. If you’ve been injured by the negligence or wrongdoing of a company, particularly a long-term care facility, contact our team of class action lawyers today to schedule a free, no-obligation consultation. We will review your claim, assess its viability within the context of our case, and provide guidance and advice as you consider your legal options.

Image: Shutterstock


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